Congress votes to protect state cannabis programs

In a landmark legislative development, the U.S. House of Representatives recently approved the Blumenauer-McClintock-Norton amendment (the Amendment), which, if signed into law, would prevent the U.S. Department of Justice (the DOJ) from using appropriated funds to interfere with a state’s legal adult-use cannabis program. Similar protections already exist for recreational cannabis.

In a further show of support for the legal cannabis industry in the United States, the House recently voted 267-165 in favor of prohibiting the DOJ from using appropriated funds to interfere with a state-legal cannabis program. The Amendment would be included as part of H.R. 3055, which provides the 2019-2020 agency appropriations for commerce, justice, and science. The Amendment specifically provides that “none of the funds made available under this Act to the Department of Justice may be used, with respect to any of the states,…to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of marijuana.”

Approval of the Amendment marks the first time that either branch of the U.S. Congress has voted to protect state-legal adult-use cannabis programs from federal enforcement actions. Since 2014, Congress has repeatedly endorsed the Rohrabacher-Farr amendment (Rohrabacher Amendment) (later changed to Rohrabacher-Blumenauer), which provided similar protections but only to state-legal medical marijuana programs. The Amendment would extend the same protection to adult-use recreational programs.

The Rohrabacher Amendment was interpreted by the U.S. Court of Appeals for the Ninth Circuit, in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), as “prohibit[ing] [the] DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The court further held that if the DOJ prosecutes those acting in compliance with a state’s program, the DOJ “has prevented the state from giving practical effect to its law.” The Ninth Circuit did warn, however, that “Congress could appropriate funds for such prosecutions tomorrow,” and that the DOJ could still prosecute “individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana.” The Ninth Circuit additionally held that individuals prosecuted by the DOJ for non-compliance with a state’s medical marijuana program would be entitled to an evidentiary hearing to “determine whether their conduct was completely authorized by state medical marijuana laws.”

The Amendment, which now advances to the Senate for approval, should have the same practical effect as the Rohrabacher Amendment if signed into law. That is, individuals acting in strict compliance with a state’s adult-use cannabis program should be shielded from federal prosecution and enforcement action (assuming that the DOJ is not re-funded for such enforcement activity). However, until the Amendment becomes law, state-legal adult-use programs remain at risk.

House approval of the Amendment indicates another step towards legalization and another victory by what Representative Blumenauer described as “the most pro-cannabis Congress in history.”1 However, although the Amendment marks progress towards ubiquitous cannabis legalization, many still view this as a half step and remain hopeful that Congress can maintain the bipartisan support for cannabis legalization and push forward more permanent legislative solutions in the form of the Marijuana Justice Act, the Regulate Marijuana Like Alcohol Act, or States Act.

Reed Smith’s Cannabis Law Team is able to help with any number of cannabis-related issues. For additional information, please visit Cannabis Law.